Citation Nr: 1043864
Decision Date: 11/22/10 Archive Date: 12/01/10
DOCKET NO. 07-17 876 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
L.M. Yasui, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1967 to June
1969.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from an October 2006 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode
Island.
In August 2008, the Board remanded this matter to the RO via the
Appeals Management Center (AMC) in Washington D.C. to ask the
Veteran to provide additional information regarding his alleged
in-service stressors. That action completed, the matter has
properly been returned to the Board for appellate consideration.
See Stegall v. West, 11 Vet. App. 268 (1998).
It appears that the issue of a total disability based upon
individual unemployability (TDIU) has been raised by the
record, but has not been adjudicated by the Agency of
Original Jurisdiction (AOJ). Therefore, the Board does
not have jurisdiction over it and it is referred to
the AOJ for appropriate action (if needed).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
Establishing service connection for PTSD requires specific
findings. These are (1) a current medical diagnosis of PTSD; (2)
credible supporting evidence that the claimed in- service
stressor actually occurred; and (3) medical evidence of a causal
nexus between current symptomatology and the specific claimed in-
service stressor. See 38 C.F.R. § 3.304(f) (2010). The
diagnosis of PTSD must comply with the criteria set forth in the
Diagnostic and Statistical Manual of Mental Disorders, 4th
edition, of the American Psychiatric Association (DSM-IV). Id.
See also 38 C.F.R. § 4.125(a) (2010).
If the evidence establishes that the veteran engaged in combat
with the enemy and the claimed stressor is related to that
combat, in the absence of clear and convincing evidence to the
contrary, and provided that the claimed stressor is consistent
with the circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 C.F.R. §
3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d)
(pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353
(1998) (Board must make a specific finding as to whether the
veteran engaged in combat).
The ordinary meaning of the phrase "engaged in combat with the
enemy," as used in 38 U.S.C.A. § 1154(b), requires that a
veteran have participated in events constituting an actual fight
or encounter with a military foe or hostile unit or
instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a
combat zone does not establish that a veteran engaged in combat
with the enemy. Id. Whether the veteran engaged in combat with
the enemy is determined through the receipt of certain recognized
military citations or other supportive evidence. West v. Brown,
7 Vet. App. 70 (1994).
Previously, if VA determined either that the veteran did not
engage in combat with the enemy or that the veteran did engage in
combat, but that the alleged stressor was not combat related, the
veteran's lay testimony, by itself, was not sufficient to
establish the occurrence of the alleged stressor. Instead, the
record had to contain credible supporting evidence that
corroborates the veteran's testimony or statements. Cohen v.
Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App.
389, 395 (1996).
However, VA has recently amended its regulations governing
service connection for PTSD by liberalizing the evidentiary
standard for establishing the required in-service stressor where
the following requirements are satisfied:
First, the veteran must have experienced, witnessed, or have been
confronted by an event or circumstance that involved actual or
threatened death or serious injury, or a threat to the physical
integrity of the veteran or others, and the veteran's response to
the event or circumstance must have involved a psychological or
psycho-physiological state of fear, helplessness, or horror. 75
Fed. Reg. 39852 (July 13, 2010) (to be codified at 38 C.F.R. §
3.304(f)).
Second, a VA psychiatrist or psychologist, or a psychiatrist or
psychologist with whom VA has contracted, must confirm that the
claimed stressor is adequate to support a diagnosis of PTSD and
that the veteran's symptoms are related to the claimed stressor.
Id. Additionally, there must be in the record no clear and
convincing evidence to the contrary, and the claimed stressor
must be consistent with the places, types, and circumstances of
the veteran's service. Id.
These revised regulations became effective July 13, 2010, and
apply in cases like the Veteran's which were appealed to the
Board prior to July 13, 2010, but not decided by the Board as of
that date. 75 Fed. Reg. 41092 (July 15, 2010) (to be codified at
38 C.F.R. § 3.304(f)).
At this time, the Board must note that the revised regulations
became effective after the August 2008 Board remand. While the
Board sincerely regrets the additional delay, a remand is
necessary to ensure that there is a complete record upon which to
decide the Veteran's claim so that he is afforded every possible
consideration.
In this case, there is no evidence of record that the Veteran
engaged in combat with the enemy, nor does he so contend. In
addition, his alleged in-service stressors have not been
corroborated. However, the Veteran has presented statements
concerning his in-service stressors. Some, such as his
contentions that his unit came under attack when he arrived in
Vietnam, that he was under constant bombing in Vietnam at night,
and that he witnessed a young boy in a Vietnamese village blow
himself up, as well as six other soldiers, seem to meet the new
criteria that the Veteran must have experienced, witnessed, or
have been confronted by an event or circumstance that involved
actual or threatened death or serious injury, or a threat to the
physical integrity of the Veteran or others.
Accordingly, in light of the amendment to VA regulations
discussed above, the Board finds that a remand is necessary to
afford the Veteran a VA examination with a VA psychiatrist or
psychologist or a psychiatrist or psychologist with whom VA has
contracted. This examiner is asked to render an opinion as to
whether it is at least as likely as not (50% or greater) that:
(1) the Veteran experienced, witnessed, or was confronted by an
event or circumstance that involved actual or threatened death or
serious injury, or a threat to the physical integrity of the
Veteran or others, and the Veteran's response to that event or
circumstance involved a psychological or psycho-physiological
state of fear, helplessness, or horror; (2) that the claimed
stressor is adequate to support a diagnosis of PTSD; and (3) that
the Veteran's symptoms are related to the claimed stressor.
Accordingly, the case is REMANDED for the following action:
1. The RO should schedule the Veteran for a
VA examination of his PTSD. The examiner
should note any functional impairment
caused by the Veteran's disability,
including a full description of the
effects of his disability upon his
ordinary activities, if any.
The VA examiner is asked to render an
opinion as to whether it is at least as
likely as not (fifty percent or greater)
that:
a) the Veteran experienced, witnessed, or
was confronted by an event or
circumstance that involved actual or
threatened death or serious injury, or a
threat to the physical integrity of the
Veteran or others, and the Veteran's
response to that event or circumstance
involved a psychological or psycho-
physiological state of fear,
helplessness, or horror;
b) that the claimed stressor is adequate
to support a diagnosis of PTSD; and
c) that the Veteran's symptoms are
related to the claimed stressor.
The Veteran's claim folder and a copy of
this REMAND should be furnished to the
examiner, who should indicate in the
examination report that he or she has
reviewed the claims file. All findings
should be described in detail and all
necessary diagnostic testing performed.
A complete rationale is required for all
opinions rendered.
2. When the development requested has been
completed, and the RO has ensured
compliance with the requested action,
this case should again be reviewed by the
RO on the basis of the additional
evidence. If the benefit sought is not
granted, the Veteran and his
representative should be furnished a
Supplemental Statement of the Case, and
be afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).